Kenyon v. Knipe

• Decision Date: 02 June 1891
• Citation: 27 P. 227,2 Wash. 394
• Parties: KENYON v. KNIPE ET AL.
• Court: Washington Supreme Court

27 P. 227

2 Wash. 394

KENYON v. KNIPE ET AL.

Supreme Court of Washington

June 2, 1891

Appeal from district court, third district.

STILES J., dissenting.

Howe & Corson and Finch, Snook & Glasgow for appellant.

Thomas Burke and C. H. Hanford, ( Andrew Woods, of counsel,) for appellees.

HOYT J.

The discussion in this case has extended over a broad range. Nearly every question connected with the subject of tide or shore lands, and the rights of riparian or littoral proprietors thereto, has been ably briefed and argued by counsel for the respective parties. Also the questions growing out of the making and recording of town plats, and the effect of the same, have been likewise presented. The conclusions to which we have come as to this second matter will make it unnecessary for us to decide the questions presented by the former, and, as they have been lately considered by this court in cases where a decision thereof was necessary, we shall here say nothing in regard thereto. The facts, so far as they are necessary to the decision of this case, are substantially as follows: Arthur A. Denny made and recorded his plat of an addition to the city of Seattle, upon which certain lots, streets, and alleys appeared, and were sufficiently described to show the intention of the maker of the plat in regard thereto. It nowhere appeared upon such plat where the line of ordinary high tide was. On the contrary, so far as could be gathered therefrom, all the territory covered by said plat was upland. As a matter of fact, however, the line of ordinary high tide so crossed said plat that a portion of lots 6 and 7, hereinafter mentioned, were above the line of ordinary high tide, and the remainder of such lots, and all of lots 5 and 8, together with the alley dividing the same, were below such line. After the making and recording of said plat the said Denny sold and conveyed to plaintiff herein lots 6 and 7, in block B, of said plat, after which said Denny sold and conveyed lots 5 and 8, in said block, and said defendants, by mesne conveyances, became possessed of the title thereby conveyed. Under said last-named conveyance from Denny, possession was taken and improvements made on said lots 5 and 8, and the alley dividing those lots from the lots of plaintiff was planked over and used as a street several years before the commencement of this action. Under these circumstances we do not think it lies in the mouth of the plaintiff to object to such improvements as being an infringement upon his rights as a littoral proprietor. The effect of the plat made by Mr. Denny was to separate the tract thereby covered into distinct lots having definite, ascertained boundaries, and into streets and alleys as marked upon said plat, and to vest in the public such streets and alleys for the purposes therein designated. That such would be the effect as to such streets and alleys if the territory covered was upland, and owned by said Denny, is conceded, but it is contended that, as he had no title to the land below the line of ordinary high tide, his plat, so far as it purported to cover such lands, was absolutely void for any and every purpose. With this contention we cannot agree so far as Mr. Denny himself is concerned. It is perhaps true that as to anybody having rights adverse to him such would be the effect, but it does not lie in his mouth to say that that which he has made of record is a nullity. He is estopped by the making of such plat from alleging its invalidity, and so far as he is concerned would not be heard to complain of the use by the public of the territory covered by streets and alleys, especially after the same had been taken possession of and improvements thereon made. This being the condition of Mr. Denny, and his relation to the title of the lots bounded and described in said plat, we think that one purchasing lots from him, by reference to said plat, could acquire no better title than he had. Of course, if one could acquire title independent of or adverse to that represented by Mr. Denny at the time of the making of the plat this reasoning would not obtain; but such is not the condition of plaintiff. Whatever title he has he obtained from Mr. Denny, and we think it elementary that under the circumstances of this case he could get no better title than that of his grantor. A deed conveying property by reference to a plat, or map thereof, adopts such plat or map as a part of such deed, and one purchasing thereunder becomes bound by the boundaries of the lot purchased as they appear on said plat or map. Applying this rule to the case at bar, it will be seen that the plaintiff herein did not purchase lots bounded by tide-water, but those bounded by a definite and defined line 120 feet from the front of said lots, so that the lots he purchased were bounded and concluded on the one side by Front street, and on the other side by the alley next westerly thereof, and we think he is estopped by such fact from claiming any rights beyond such boundaries as against the rights of the public in said alley, and of those in possession of the lots beyond such alley. Unaided by such plat, his deed is uncertain and void. Aided by it, it becomes a valid deed, but of a lot with definite boundaries, and he must be bound thereby. It follows that the plaintiff is not entitled to the relief prayed for, and the decision of the lower court in so holding must be affirmed, and it is so ordered.

DUNBAR and SCOTT, JJ., concur.

ANDERS, C.J. I concur in the result.

STILES J., ( dissenting.)

Both parties in this case assumed that the riparian right of wharfage existed when the action was commenced. Substantially their only difference on that subject was that the appellant took the position that such rights were not severable from the ownership of the upland excepting by a conveyance clearly showing that to be the purpose of the grantor. The appellee on the other hand, claimed that any deed describing upland, or upland and shore land, by metes and bounds, though the high-water mark in either case should be the actual boundary, was sufficient for the severance of the right of wharfage and access to the sea from the upland. From the opinion of the court it does not appear clearly, as the fact was, that the land owned by Denny constituted a mere strip of some 40 feet in width between Front street on the east and the line of mean high water on the west. This strip seems to have been a remnant left after the original plat of lands owned by Denny had been filed, and which he thereafter undertook to subdivide into lots. His plat was in the usual form, and had nothing upon it which indicated that there was any navigable water embraced within its limits. To the westward of the line of high water, and 120 feet from Front street, he noted on his plat what appeared to be an open strip, but without any designation upon it that it was to be an alley, and to the west ward of that other lots were noted, and numbered the same as those which embraced the upland. Kenyon met Denny in Olympia, before the former had ever seen the plat, and spoke to him about the purchase of some of his "water lots." Denny told him he would reserve him two. Afterwards, in pursuance of this conversation. Denny executed to Kenyon a conveyance of lots 6 and 7 in one of...